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When mediating a lengthy series of discussions, you note that one party, while making agreements during discussions, does not adhere to them just a few days later. This leads to continuing community conflict, with violence frequently breaking out after agreements have been reached. This then generates greater mistrust between the parties, fear within the community, spread of rumours and additional violence. How do you get parties to adhere to agreements reached during discussions?
Gary Koekemoer - currently working for the Institute for Mediation Services in South Africa (IMSSA) in the Eastern Cape, setting up mediations and developing community-police forums - argues that most importantly, the mediator must make sure that the people at the table actually have the authority to enforce their decisions in their communities. Sometimes representatives at the talks are not necessarily those making the decisions for the parties. If they do not have authority, their agreements are possibly meaningless to the groups they represent. It is also important to remember that a mediator needs to challenge parties, but not rush them into agreements. This prevents them from agreeing to things over which they have no control.
Secondly, the mediator needs to create conditions whereby an agreement is the most beneficial option for both parties involved. If a number of agreements do break down, the mediator needs to discuss this with parties and highlight that their actions could jeopardise the whole process. Parties should own responsibility for the negotiations process, as well as the outcome.
Philip Visser, of the Wilgespruit Fellowship Centre in Roodepoort, also stresses the importance of having the "right" people at the negotiating table. Visser suggests that a practical way to deal with the adherence problem is to establish a system of joint monitoring, a recommendation which takes Koekemoer's idea of party responsibility in the talks a step further. This makes the parties responsible for monitoring any agreement. Then when there is a breakdown, there is a structure to deal with transgression immediately, preventing it from festering, spilling over or escalating. A joint monitoring system serves as a structure for accountability.
Mediator Nomagcisa Tsipa-Sipoyo, currently with Arca's Engineering in Cape Town, states that it is important not to attack the group or individual who neglects to adhere to the agreement; rather, they should be given a comfortable space where they can own up to the group. Then parties must be separately consulted to discuss what they think needs to happen for negotiations to continue. In the end, the mediator should review the whole course of events for the group as a learning experience.
A mediator is asked to mediate a conflict within a community which has experienced recent violence between the parties. Because of the recent violence, there is heightened local and national attention (through the media) towards this conflict. This heightened publicity has strained the discussions taking place. What precautions do you take? Specifically, how do you handle the media?
Craig Arendse, coordinator of Mediation Training Services at the Centre for Conflict Resolution (CCR), has had a great deal of experience in this regard. Recently, he was involved in the negotiations in the Cape Town metropolitan area between People Against Gangsterism and Drugs (PAGAD) and the police. He has experienced many occasions where the "media issue" has arisen.
His first recommendation is that the mediator - not the parties - must make all public statements. The mediator needs to present the process and agreements reached, although it is important that areas of tension between the parties not be discussed outside the negotiations. There should also be frequent press briefings. Everything sent or released to the press must be written down. This is especially important, so that if the press misquotes, the parties' statements are on record. If the press misquotes or otherwise distorts the situation, the mediator needs to ensure that the parties are able to see that it is the fault of the press. The mediator should then determine how to manage the press. This often results in the mediator controlling the level of access media have to the conflict.
A positive aspect of the role of the media is that they can hold parties accountable, by tracking their adherence to agreements and deadlines. Arendse suggests that, if possible, the mediator should get journalists to take a constructive approach to the negotiations, and get them to write unbiased accounts and not sensationalise the talks.
However, as Tsipa-Sipoyo and Visser point out, it is also important to educate the media on how to report on conflict. Visser emphasises the need for the media to understand more about the process of mediation and conflict prevention. Throughout the negotiation process, the mediator needs to educate the media on their influence and responsibility in that process. For Tsipa-Sipoyo, the mediator needs to build a relationship with journalists and editors. She argues that they need to be educated on how to deal with the conflict and how to present it constructively through the media. Particularly, they need to sensitise the media about the repercussions of their sensationalising negative aspects of the conflict. They also need to understand the fundamental pillars of mediation, and how their influence can promote or upset negotiations.
Mediators often confront moral dilemmas in their work. What if, for instance, you are intervening in a conflict which involves suspected or convicted criminals? How do you proceed in this situation?
Visser acknowledges that in the South African context, it is typical to have convicted or alleged criminal offenders either at the talks or involved in the dispute. If mediators feel morally affronted, Visser says, they can always opt out of the process.
Visser himself is currently involved in a conflict between two communities that have gone through episodic violence since 1995. One of the main leaders of one party is a man who was on trial for 18 murders. However, due to lack of evidence, he was never convicted. Within the community it is widely believed that he committed those crimes. As a mediator, Visser feels that he cannot walk away from these negotiations. He would rather stay and gather as much information and give them a chance to negotiate an agreement. In this particular case there is also a police investigation underway, and there is a possibility that during the negotiations, people involved in the negotiations could be arrested. But again as a mediator he would not preclude anyone from taking part in the talks; there are very few people involved with clean hands.
Similarly, Arendse has had to look at the problem of having gang members or criminals at the negotiating table. He struggles with the idea of letting them enter into talks, feeling that they might delegitimise the process. He also questions whether the agreements reached would be sustainable. This is often the greatest concern for mediators trying to intervene in a conflict which includes criminals, because if they are left out of the talks, the conflict may never be resolved. However, if they take part in the negotiations, other parties may refuse to participate.
Comments from Tsipa-Sipoyo look at the community repercussions of upholding the rights of the alleged offender and show the positive results of incorporating them in talks. In her case, she was asked to mediate between a rapist and a community trying to execute the rapist. The victim and a member of the community was a young girl. She had to suppress her own feelings of hatred towards the offender and confront the community, and convince them that killing him would not solve the problem of rape in the community. In the end the man was convicted and sent to prison, and the community's consciousness was raised, allowing them to start looking at establishing pro-active methods to deal with rape.
You are asked to intervene in a business setting where there is a large power disadvantage. The workers are not formally educated and they cannot communicate very well in the language that management uses. They are also divided among themselves on the issues under debate, and do not form a cohesive front. What do you do to address this situation?
Tsipa-Sipoyo emphasises balancing the playing field. She notes that it is necessary to get everyone on the same level before negotiations can begin. She states that it is fundamental that both parties accept the mediator's presence and their role as mediator - so that the mediator has a strong power base to begin with. First, the mediator needs to have private sessions with each party. If the workers have a language barrier or are not sufficiently educated, it is essential that the mediator decodes the issues for them, explains what the finer details are, and reframes issues so that workers have a clear understanding.
It is also important to sensitise the parties by helping them to identify their strengths. Workers can strike; management often has a strong resource base. These power bases, however, do not mean that either will win a power struggle. By sensitising the parties to their strengths and weaknesses, the mediator can get them to really listen to each other's issues and grievances. Deconstructing issues together and respecting one another's opinions will assist them on future occasions where there may not be a need for a mediator. They will themselves be able to identify, understand and listen to each other's concerns.
Koekemoer focuses on the issue of time. For the mediator, a lot depends on the amount of time they have prior to the beginning of negotiations. A mediator has a responsibility to research the background of the conflict and check out possible options, before entering into negotiations. IMSSA typically undertakes a needs assessment. This is done through workshops for the workers and management where the mediator finds out what the parties' priorities are and what they want out of the negotiations. In workshops with each party, the mediator tries to narrow down concerns and find common issues or threads that will bring the group together and form a united front, giving them power in the negotiating forum.
You are asked to intervene in a dispute between a landlord and the tenants living in one of his buildings, recently condemned by the city. If the building is demolished, many families will be displaced. The city has asked you to mediate between the tenants and the landlord. In the initial meeting that you hold, 75 people show up and they all seem to have different agendas. How do you proceed?
Rodney Dreyer, a senior trainer in Mediation Training Services at CCR, focuses on the common needs involved. The debate is between housing and a safe and healthy environment. The dilemma is to get parties to acknowledge that their needs are not completely different. The mediator needs to help tenants create common needs or issues. This is done by brainstorming with the tenants and listing needs, and showing them visually how they represent common sets of interests. These needs are then linked together and clustered into groups. Clustering needs helps individuals see how they can reduce the level of complexity of dealing with a proliferation of issues, but still ensure that all or most needs are addressed in the negotiating forum.
The next step is to group tenants who have common sets of needs. Within each group, the tenants then nominate a representative who negotiates on their behalf. The result is that there is a workable number of issues and representatives at the table. The mediator should also meet with the landlord separately, find out his understanding of the conflict and explain what is being done with the tenants so that he understands how he benefits from a more constructive negotiating forum.
As Visser notes, the result of collective action by the tenants gives them choices that they would not have if they continued to act individually. They can buy the building, form a co-op, get city housing or developers to back them, or seek alternative housing. But this can be accomplished only if they form a cohesive front, and explore different methods of assessing their own situation.
The central theme to be drawn out of these responses is that intervention is contextual. A mediator's approach depends on the parties involved, the issues at hand and the environment of a particular conflict. Adherence to fundamental principles rather than specific methods allows the mediator to adapt to difficult situations effectively.
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